On November 7, one day after the 6th Circuit Court of Appeals rejected marriage equality claims from Ohio, Michigan, Tennessee and Kentucky, federal district courts in Missouri and West Virginia issued new marriage equality rulings. Chief U.S. District Judge Robert C. Chambers of the Southern District of West Virginia granted summary judgment to the plaintiffs in McGee v. Cole, a case brought by Lambda Legal and The Tinney Law Firm. Senior U.S. District Judge Ortrie D. Smith of the Western District of Missouri granted summary judgment to the plaintiffs in Lawson v. Kelly, a case brought by the ACLU of Missouri Foundation. Missouri will appeal. West Virginia was already granting marriage licenses to same-sex couples, in compliance with the 4th Circuit’s ruling that the Supreme Court declined to review on October 6. Thus, the West Virginia ruling could be seen as a formality, part of the “mopping up” process in the 4th Circuit. But the Missouri decision staked out important new ground in the 8th Circuit.
Judge Chambers was appointed to the court by President Bill Clinton in 1997. Judge Smith was appointed by President Clinton in 1995, and has been serving as a senior judge since 2011.
The most notable aspect of Judge Chambers’ ruling in West Virginia was the pointed rebuttal to 6th Circuit Judge Jeffrey Sutton’s opinion issued the previous day. Sutton had argued that the decision whether same-sex couples can marry should be left up to the political process in each state, and not dictated by federal judges, a “wait and see” approach. Countered Chambers, after noting that the 6th Circuit had “reached the opposite result” from the other circuit courts, “The majority there noted two rationales in support of the marriage bans. First, the court found the marriage bans in Kentucky, Michigan, Ohio, and Tennessee to be rooted in the States’ interest in regulating procreation by providing incentives for parents to remain together. But the opinion then conceded that this view of marriage can no longer be sustained, that marriage now serves ‘another value — to solemnize relationships characterized by love, affection, and commitment.’ Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procreation and irrationally excludes the couple from the latter purpose of marriage. Second, the majority [in the 6th Circuit] implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States’ right to take a ‘wait and see’ approach. This approach, however, fails to recognize the role of courts in the democratic process. It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom. Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states. Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.”
Take that, Judge Sutton!
Judge Smith’s decision is particularly significant because the 8th Circuit issued a decision in 2006, Citizens for Equal Protection v. Bruning, rejecting a constitutional challenge to Nebraska’s constitutional amendment banning same-sex marriage. Ordinarily, one might easily assume that a trial judge within the 8th Circuit would be precluded from ruling in favor of the plaintiffs in a marriage equality case because of controlling circuit precedent. A contrary argument could assert that Bruning is no longer a binding precedent in light of U.S. v. Windsor, but Judge Smith did not take that route. Instead, he examined the issues at stake and decided in the Bruning case, and concluded that it did not control the issue before him.
In Bruning, some Nebraska citizens challenged the enactment of the state’s marriage amendment using an argument that had been accepted by the Colorado Supreme Court more than a decade earlier when it ruled against the constitutionality of that state’s Amendment 2, which prohibited the state from protecting gay people from discrimination. The plaintiffs in Bruning argued that the amendment unconstitutionally deprived them of equal access to the political process by locking a different-sex definition of marriage into the state constitution, thus requiring them to achieve repeal of the amendment before they could approach the legislature to obtain same-sex marriage through the ordinary legislative process. The 8th Circuit rejected their claim, and pointed out that the plaintiffs had not asserted a federal constitutional right to marry in their challenge to the Nebraska amendment, so the court was not deciding whether same-sex couples had a constitutional right to marry, although it did express its view that the marriage amendment would survive rational basis review.
Thus, the district court in the November 7 ruling was writing on a partially clean slate, having also concluded that it was not bound by the Supreme Court’s 1972 summary disposition in Baker v. Nelson. While not mentioned the 6th Circuit ruling to the contrary the previous day, Judge Smith rejected its reasoning on this point. “This Court concludes doctrinal developments indicate the Supreme Court’s summary ruling is not reliable or binding,” he wrote, listing various subsequent Supreme Court cases on the right to marry and on gay rights. “As the Second Circuit observed in Windsor, ‘when Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.’ Given that the Second Circuit concluded Baker was not binding, and that the Second Circuit was later affirmed in Windsor, ‘the Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law,'” he concluded, quoting from the 4th Circuit’s opinion in the Virginia marriage case, Bostic v. Schaefer.
Turning to the merits, he found that the Missouri marriage ban violates the fundamental right to marry. The court was helped in this case because Missouri’s attorney general, Chris Koster, who is not an ardent defender of the ban, had decided to abandon the ridiculous arguments that have been rejected by dozens of federal trial and appellate judges over the past year, and had fallen back on the lame argument that the ban is “rationally related” to the state’s interest “in promoting consistency, uniformity and predictability.” Judge Smith characterized this as a “circular argument” under which any regulation adopted by the state would be deemed rational, no matter how outlandish. As he pointed out, “a rule restricting marriage to those with one-syllable names promotes consistency, uniformity and predictability. A rule restricting marriage to people within a specified age difference promotes consistency, uniformity and predictability. Neither of these rules would be constitutional — the state’s ability to interfere with the personal decision as to who can and cannot get married is not so far-reaching. Merely prescribing a ‘followable’ rule does not demonstrate the rule’s constitutionality.”
Thus, Smith concluded, there was “no real reason for the State’s decision to dictate that people of the same gender cannot be married.” Since he had found that the ban violates a fundamental right, the lack of any real justification was fatal for the ban. He also found that the ban creates a “classification based on gender,” and any such classification requires heightened scrutiny, a test that the state could not meet. In a tiny victory for the state, Smith acknowledged that sexual orientation discrimination claims only merit rational basis review, and that in Bruning, the 8th Circuit court “had clearly expressed its belief that laws prohibiting same-sex marriage would pass rational basis review.” On that basis, said Smith, he would grant summary judgment to the state on the plaintiff’s sexual orientation discrimination claim. No matter, however, since plaintiffs won on the other two claims.
However, due to a particular oddity of the case, Judge Smith felt constrained to offer only limited relief, in the form of an order that the Jackson County Recorder, Robert T. Kelly, as the only named defendant, would be the only state official directed to issue marriage licenses. This seemed peculiar, since the case was originally filed in state court and then the state intervened as a defendant and removed it to federal court. One would think that with the state as an intervenor defendant, Smith could make his order binding on all state officials. He did point out that he was also providing declaratory relief, which would presumably have some binding effect, specially if his decision is affirmed by the 8th Circuit, to which the state had indicated it would be appealing.
However, Attorney General Koster released a statement indicating that he would not be seeking a stay of Judge Smith’s decision, which was consistent with Koster’s reaction to recent state court rulings both mandating recognition of out-of-state same-sex marriages and requiring that certain county clerks issue marriage licenses. Missouri is, at this point, close to being a marriage equality state de facto, if not de jure, although the court’s direct relief is limited to Jackson County. As the first in the door, however, Missouri may end up being the lead state in defending its marriage ban before the 8th Circuit Court of Appeals, if a U.S. Supreme Court ruling does not come first.